BAKAYOKO v. PANERA BREAD
Filing
24
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 9/17/2015; that Defendant's Motion to Compel (Docket Entry 20 ) is GRANTED IN PART. FURTHER that Plaintiff must respond to Defendant's First Request for Pro duction of Documents on or before October 1, 2015. Failure to comply with this Order may result in the dismissal of this action. FURTHER that, by operation of Federal Rule of Civil Procedure 36(a)(3), Defendant's First Set of Requests for Admission are ADMITTED. FURTHER that, on or before October 1, 2015, Defendant shall serve Plaintiff with a statement setting out the reasonable expenses, including attorney's fees, Defendant incurred in making the Motion to Compel as set out herein. FURTHER that, if Defendant timely serves such a statement of reasonable expenses, Plaintiff shall file, on or before October 15, 2015, either: 1) a Notice indicating his agreement to pay the claimed expenses; or 2) a Memora ndum of no more than five pages explaining why he contests the reasonableness of the claimed expenses as set out herein. FURTHER that, on or before October 22, 2015, Defendant shall file a Response of no more than five pages to any Memorandum timely filed by Plaintiff contesting the reasonableness of the claimed expenses. FURTHER that, on or before October 29, 2015, Plaintiff may file a Reply of no more than three pages to any Response timely filed by Defendant regarding the reasonableness of the claimed expenses. FURTHER that, upon completion of the foregoing briefing or the time period for such briefing, the Clerk shall refer this matter back to the undersigned Magistrate Judge for further action. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ZOUMANA BAKAYOKO,
Plaintiff,
v.
PANERA BREAD,
Defendant.
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1:14CV993
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Compel Discovery Responses and to Deem Requests for Admission
Admitted (“Motion to Compel”). (Docket Entry 20.) For the reasons
that follow, the Court will grant in part Defendant’s Motion to
Compel.
BACKGROUND
Plaintiff’s pro se Complaint alleges racial and national
origin discrimination and retaliation by Defendant, his former
employer, in violation of Title VII.
(Docket Entry 3 at 3-4.)
At
the Initial Pretrial Conference, the Parties agreed to a discovery
deadline of August 31, 2015.
(adopting
Docket
Entry
16,
(Text Order dated Mar. 30, 2015
except
as
to
expert
disclosure
deadlines).)
On May 15, 2015, Defendant served on Plaintiff its First Set
of Interrogatories and First Request for Production of Documents,
as well as its First Set of Requests for Admission.
(Docket Entry
20 at 1; see also Docket Entry 21–1 (interrogatories and request
for production of documents); Docket Entry 21–2 (requests for
admission).)
Defendant
received
Plaintiff’s
interrogatory
responses on May 27, 2015, but did not receive any responses to its
request for production or requests for admission. (Docket Entry 21
at 1-2; see also Docket Entry 21-3.)
Thereafter, Defendant sent
Plaintiff a letter dated July 22, 2015, demanding that Plaintiff
respond to Defendant’s outstanding discovery requests by July 30,
2015, and
offering
to
discuss
telephone on July 29, 2015.
the
matter with
Plaintiff via
(Docket Entry 21-4.)
Plaintiff did
not respond to the letter, call Defendant to discuss the matter, or
provide Defendant with further discovery responses.
(Docket Entry
21 at 2-3.)
Defendant filed its Motion to Compel on August 3, 2015.
(Docket Entry 20.)
As of the date of this Order, Plaintiff has not
responded. (See Docket Entries dated Aug. 3, 2015, to present.)1
On August 28, 2015, Defendant filed a Memorandum in Further Support
of Motion to Compel Discovery Responses and to Deem Requests for
Admission Admitted.
(Docket Entry 22).2
1
Under this Court’s Local Rule 7.3(f), Plaintiff had 21 days to file a
response. Plaintiff’s failure to file a response to Defendant’s Motion to Compel
constitutes “a waiver of the right . . . to file such brief or response.”
M.D.N.C. LR7.3(k).
Accordingly, Defendant’s “[M]otion [to Compel] will be
considered and decided as an uncontested motion, and ordinarily will be granted
without further notice.” Id.
2
The Court’s Local Rule 7.3(h) provides that “[a] reply brief may be filed
. . . after service of the response” and “is limited to discussion of matters
newly raised in the response.” M.D.N.C. LR7.3(h). Plaintiff filed no response
(continued...)
2
DISCUSSION
“The purpose of discovery is to provide a mechanism for making
relevant information available to the litigants.”
26 advisory committee’s note, 1983 amend.
Fed. R. Civ. P.
Under the Federal Rules
of Civil Procedure, “[u]nless otherwise limited by court order,
. . . [p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense . . . .”
Fed. R. Civ. P. 26(b)(1).
admissible
at
the
trial
if
“Relevant information need not be
the
discovery
appears
reasonably
calculated to lead to the discovery of admissible evidence.”
Id.;
see also Elkins v. Broome, Civ. Action No. 1:02-305, 2004 WL
3249257, at *2 (M.D.N.C. Jan. 12, 2004) (unpublished) (“[R]elevancy
at discovery is a far different matter from relevancy at trial.
At
discovery, relevancy is more properly considered synonymous with
‘germane,’ as opposed to competency or admissibility.”); Flora v.
Hamilton, 81 F.R.D. 576, 578 (M.D.N.C. 1978) (“It is clear that
what is relevant in discovery is different from what is relevant at
trial,
in
that
the
concept
at
the
discovery
stage
is
much
broader.”). “In applying the foregoing principles, district judges
and magistrate judges in the Fourth Circuit (including members of
this
Court)
have
repeatedly
ruled
that
the
party
or
person
resisting discovery, not the party moving to compel discovery,
(...continued)
to Defendant’s Motion to Compel, and the Court, therefore, will not consider
Defendant’s Memorandum in Further Support.
3
bears the burden of persuasion.”
Hughes v. Research Triangle
Inst., No. 1:11CV546, 2014 WL 4384078, at *2 (M.D.N.C. Sept. 3,
2014) (unpublished) (citing Kinetic Concepts, Inc. v. ConvaTec
Inc., 268 F.R.D. 226, 243–44 (M.D.N.C. 2010)).
A.
Request for Production of Documents
The Federal Rules of Civil Procedure provide that “[a] party
may serve on any other party a request . . . to produce and permit
the requesting party or its representative to inspect, copy, test,
or
sample
[designated
documents
or
electronically
stored
information] in the responding party’s possession, custody, or
control.”
Fed. R. Civ. P. 34(a).
The receiving party must respond
in writing either agreeing to the request or providing reasons for
objection.
Fed. R. Civ. P. 34(b)(2)(A)-(B).
To ensure compliance
with these discovery obligations, “[a] party seeking discovery may
move for an order compelling an answer, designation, production, or
inspection . . . [if] a party fails to . . . respond that
inspection will be permitted . . . as requested under Rule 34.”
Fed. R. Civ. P. 37(a)(3)(B).
Defendant
contends
that
Plaintiff
has
not
produced
documents responsive to Defendant’s request for production.
Docket Entry 21 at 1.)
any
(See
As noted in the Background, Plaintiff has
neither contested that contention nor provided an excuse for his
failure to produce responsive documents.
Further, the Court’s
review of the document requests reveals no obvious basis to deem
4
them improper.
Plaintiff must, therefore, produce the requested
documents.
B.
Requests for Admission
The Federal Rules of Civil Procedure permit
[a] party [to] serve on any other party a written request to
admit, for purposes of the pending action only, the truth of
any matters within the scope of Rule 26(b)(1) relating to:
(A) facts, the application of law to fact, or opinions
about either; and
(B) the genuineness of any described documents.
Fed. R. Civ. P. 36(a).
Under the Rules, “[a] matter is admitted
unless, within 30 days after being served, the party to whom the
request is directed serves on the requesting party a written answer
or objection addressed to the matter and signed by the party.”
Fed. R. Civ. P. 36(a)(3).
Here, the record shows that Defendant served its First Set of
Requests for Admission on May 15, 2015. (Docket Entry 20 at 1; see
also Docket Entry 21–2 (requests for admissions).)
According to
Defendant, Plaintiff did not respond to the requests for admission
within the 30-day time period mandated by Federal Rule of Civil
Procedure 36(a)(3). (Docket Entry 21 at 2.) Because Plaintiff has
not objected to Defendant’s First Set of Requests for Admission,
served Defendant with a written answer, or requested an extension
of time in which to respond, by operation of Rule 36(a)(3), the
First Set of Requests for Admission are admitted.
See Whiting v.
Weslowski, 200 F.R.D. 263, 265 (E.D.N.C. 2000) (granting the
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defendants’ Motion Requesting that their First Set of Admissions be
Deemed Admitted where pro se plaintiff failed to respond); see also
Cotton v. Evanston Ins. Co., 1:09-CV-504, 2011 WL 6663609, at *2
(M.D.N.C. Dec. 21, 2011) (unpublished) (“[U]nder Fed. R. Civ. P.
36(a)(3), [the pro se] [p]laintiff’s failure to respond to [the]
[d]efendant’s Requests for Admissions in a timely fashion has
resulted
in
the
de
facto
admission
of
the
facts
contained
therein.”); Reels v. Nationwide Mut. Ins. Co., 4:07-CV-191, 2009 WL
1438188, at *1 (E.D.N.C. May 20, 2009) (unpublished) (“In light of
[the pro se] plaintiff’s unexplained failure to respond to [the
defendant’s] requests for admissions, the requests are deemed
admitted.”).
C.
Expense Shifting/Sanctions
Defendant seeks expense-shifting under Federal Rule of Civil
Procedure
37(d),
based
on
Plaintiff’s
failure
to
respond
to
Defendant’s document requests. (See Docket Entry 21 at 5-6.) That
Rule provides that, upon motion, the Court may impose sanctions for
a failure to serve answers, objections, or written responses to
requests for production.
Fed. R. Civ. P. 37(d)(1)(A)(ii).
Such
motions “must include a certification that the movant has in good
faith conferred or attempted to confer with the party failing to
act in an effort to obtain the answer or response without [C]ourt
action.”
Fed. R. Civ. P. 37(d)(1)(B).
Among other sanctions
available, “the [C]ourt must require the party failing to act
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. . . to pay the reasonable expenses, including attorney’s fees,
caused
by
the
failure,
unless
the
failure
was
substantially
justified or other circumstances make an award of expenses unjust.”
Fed. R. Civ. P. 37(d)(3).
Defendant also seeks expense-shifting under Federal Rule of
Civil Procedure 37(c)(2), based on Plaintiff’s failure to respond
to Defendant’s admission requests.
(See Docket Entry 21 at 6-7.)
That Rule provides that where
a party fails to admit what is requested . . . and . . . the
requesting party later proves a document to be genuine or the
matter true, [and] the requesting party [moves] that the party
who failed to admit pay the reasonable expenses, including
attorney’s fees, incurred in making that proof. The [C]ourt
must so order unless:
(A) the request was held objectionable under Rule 36(a);
(B) the admission sought was of no substantial importance;
(C) the party failing to admit had a reasonable ground to
believe that it might prevail on the matter; or
(D) there was other good reason for the failure to admit.
Fed. R. Civ. P. 37(c)(2).
With
regard
to
Defendant’s
requests
for
production,
Defendant’s July 22, 2015 letter shows that Defendant attempted in
good
faith
to
confer
with
Plaintiff
in
an
effort
to
responses before filing the instant Motion to Compel.
Entry 21-4; Docket Entry 20 at ¶ 5.)
obtain
(Docket
Plaintiff has not answered,
objected to, or responded to Defendant’s request for production.
By failing to respond to the instant Motion to Compel, Plaintiff
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has forfeited any claim that a substantial justification excused
the refusal to respond to Defendant’s request for production or
that any other circumstances make an award of expenses unjust. See
M.D.N.C.
LR7.3(f)
and
(k);
see
also
Garity
v.
Donahoe,
No.
2:11CV01805, 2014 WL 1168913, at *6 (D. Nev. Mar. 21, 2014)
(unpublished) (“Indeed, a litigant’s pro se status does not relieve
[him] of obligations to comply with discovery rules.”); Hughes,
2014 WL 4384078, *5 (ordering pro se plaintiff to pay defendant’s
attorney’s fees and costs incurred in making its motion to compel).
Plaintiff must, therefore, pay Defendant’s reasonable expenses,
including attorney’s fees, incurred in moving to compel responses
to the request for production.
Turning to Defendant’s request for an award of expenses for
Plaintiff’s
failure
to
respond
to
Defendant’s
requests
admission, the Court does not find such relief appropriate.
for
As
noted above, Defendant’s requests for admission are admitted due to
Plaintiff’s failure to timely respond.
See Fed. R. Civ. P.
36(a)(3). Accordingly, Plaintiff has not denied a request to admit
matters as required for an award of expenses.
See Fed. R. Civ. P.
37(c)(2); see also Fed. R. Civ. P. 36(a)(6) (allowing award of
expenses,
including attorney’s
fees, for
party’s
insufficient
answer or objection, but not for party’s failure to answer).
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CONCLUSION
Defendant has established grounds for relief under Federal
Rule of Civil Procedure 37.
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel
(Docket Entry 20) is GRANTED IN PART.
IT
IS
FURTHER
ORDERED
that
Plaintiff
must
respond
to
Defendant’s First Request for Production of Documents on or before
October 1, 2015.
Failure to comply with this Order may result in
the dismissal of this action.
IT IS FURTHER ORDERED that, by operation of Federal Rule of
Civil Procedure 36(a)(3), Defendant’s First Set of Requests for
Admission are ADMITTED.
IT IS FURTHER ORDERED that, on or before October 1, 2015,
Defendant shall serve Plaintiff with a statement setting out the
reasonable expenses, including attorney’s fees, Defendant incurred
in making the Motion to Compel, excluding all expenses related to
Defendant’s Memorandum in Further Support of Motion to Compel
Discovery Responses and to Deem Requests for Admission Admitted
(Docket Entry 22), reduced by 50% for each line item to account for
the fact that the Court has ordered expense-shifting only as to the
failure to respond to document requests and not for the failure to
respond to admission requests. Failure by Defendant to comply with
this Order will result in denial of any expense-shifting.
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IT IS FURTHER ORDERED that, if Defendant timely serves such a
statement of reasonable expenses, Plaintiff shall file, on or
before October
15,
2015,
either:
1) a
Notice
indicating
his
agreement to pay the claimed expenses; or 2) a Memorandum of no
more than five pages explaining why he contests the reasonableness
of
the
claimed
expenses,
along
with
a
certification
that
he
attempted in good faith to resolve any disagreement over the
reasonableness of the claimed expenses with Defendant.
Failure by
Plaintiff to comply with this Order will result in the Court
ordering,
upon
the
filing
of
a
Notice
by
Defendant
of
its
reasonable expenses as contained in the statement it served upon
Plaintiff, the payment of such expenses by Plaintiff.
IT IS FURTHER ORDERED that, on or before October 22, 2015,
Defendant shall file a Response of no more than five pages to any
Memorandum timely filed by Plaintiff contesting the reasonableness
of the claimed expenses.
Failure by Defendant to comply with this
Order will result in denial of any expenses contested by Plaintiff
as unreasonable.
IT IS FURTHER ORDERED that, on or before October 29, 2015,
Plaintiff may file a Reply of no more than three pages to any
Response timely filed by Defendant regarding the reasonableness of
the claimed expenses.
IT IS FURTHER ORDERED that, upon completion of the foregoing
briefing or the time period for such briefing, the Clerk shall
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refer this matter back to the undersigned Magistrate Judge for
further action.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 17, 2015
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